Former Assistant U.S. Attorney Andrew McCarthy on Obama’s decision to release the OLC memos

HH: I am joined now by National Review’s Andrew McCarthy. He’s a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir Of The Jihad, has been a guest on the show a number of times. Andy, welcome back, good to have you.

AM: Hugh, great to be here, how are you?

HH: I’m great. Have you read Lowry’s new book yet? I think you’re part of the bio on O’Hanlon, the prosecutor in that.

AM: Well, because of you, I haven’t yet read it, but it have post-its all over it.

HH: Okay, there you go. You’ve got to go find O’Hanlon. Hey, I’ve got to get from the beginning your opinion on the release of the memos, the impact of the release of the memo, but even before that, your legal analysis of whether or not at any time until the present the use of waterboarding has been illegal in the United States. Let’s start there, Andrew McCarthy.

AM: I think the use of waterboarding has never been illegal in the United States. No prosecutor who was a competent, professional prosecutor doing a non-politicized case would indict a waterboarding case, because there’s not enough certainty that it’s actually been illegal. And in fact, I think the better of the argument is that it hasn’t been illegal.

HH: Has Congress had ample opportunity to define waterboarding as illegal and it refused to do so, Andy?

AM: Yes, they absolutely have. In fact, it came up directly, the question came straight up in the Senate, and they voted it down, to add waterboarding. They also, Hugh, did, if you remember I think it was a couple of years ago, they did a major amendment to the War Crimes Statute. I believe it was in connection with the Military Commissions Act in ’06 where they clarified the atrocities that would be prosecutable for war crimes. They could certainly have added waterboarding. Everybody knew at that point that it was a controversial issue, and yet again, they ducked it.

HH: Is that probative at all, Andrew McCarthy, in a prosecutor’s assessment of guilt and innocence?

AM: Yeah, I think it absolutely is. Anything, Hugh, I think that goes to, particularly now we’re talking about potential prosecutions of Justice Department people, of lawyers, where I think the legal playing field is more relevant than it might be for the normal prosecution, anything that would go to the state of mind of anyone who you would potentially indict, because a war crime, generally speaking, is a specific intent crime. You have to really understand that you’re breaking the law and follow through anyway.

HH: Now Andrew McCarthy, you raise the issue of the day, which is President Obama has now indicated he is open to prosecuting former Justice Department officials. To me, this is an astonishing and deeply revolting development. It is the criminalization of politics at a level I’ve never seen before. The criminalization of justice…the fact of the matter is, how do you think…I was only at Justice one year. You spent a lifetime there, a career there. How do you think this sort of politicization of the process will impact line prosecutors, line analysts right now?

AM: I think in the Justice Department, you’re going to have a lot of political appointees who at least will have a stiff upper lip and be supportive. But as you get through the rank and file of prosecutors in the country, I think most of them who are sensible are going to find this horrifying. Now as you know and I know, lawyers, particularly federal prosecutors, and particularly in the big offices like New York and Chicago and some of the ones in California, look, they’re products of the American law schools. The American law schools are a bastion of the left. And people come out, I think, probably sympathetic to the sort of things that Obama is saying. But a lot of prosecutors, even if they don’t start out as law and order types, get mugged by reality pretty quickly. And a lot of others are law enforcement types who understand and take seriously the oath to protect the United States. And they’re going to be very upset about this. And I must say, Hugh, just to deviate for a second about the oath to defend the United States? There’s an awful lot of very indignant remarks that are coming out of Obama all the time about what other people did, and what we need to apologize for. What I never get out of him is a sense that he has an obligation which is more solemn than any obligation otherwise that he has to protect the American people. It’s an obligation that President Bush took very seriously every day, and followed through on it even when it meant that it was, what he was doing was unpopular. I don’t think this guy gets it.

HH: I’m talking with Andrew McCarthy, the National Review senior fellow at the National Review Institute, author of Willful Blindness: A Memoir Of The Jihad, and his article in today’s Nationalreview.com, The Real Interrogation Scandal, is linked at Hughhewitt.com. Let’s move now to the memos. There’s a story out today from CNS news service, Andrew McCarthy, by Terry Jeffrey, you know, very, very reputable editor-in-chief.

AM: Right.

HH: …that the CIA has confirmed again that the revelations gained from the use of waterboarding of Khalid Sheik Mohammed, KSM, led to the deterrence, the ending of a real threat, a 17 member cell plan to attack Los Angeles with aircraft, the East Asia thing.

AM: Right.

HH: Is that consistent with what you understand of the story?

AM: Yes.

HH: Given that, is it fair to say that had they not used waterboarding, that would have happened?

AM: It’s fair to say that there’s a real possibility that if they hadn’t used waterboarding it would’ve happened. If you hadn’t gotten that information from KSM, and by the way, you wouldn’t have gotten to KSM in the first place without used waterboarding. But they had to break him in order to get information. And that’s evidently what happened.

HH: Yeah, KSM then turned in Zubair, and Zubair turned in Hambali. All this stuff goes back to waterboarding. So if it’s a poison tree, the fruit’s been pretty damned good, Andrew McCarthy, is what I’m talking…

AM: Well, you know, that’s exactly right. And they keep talking about this shock the conscience test, and as I try to point out in the article today, you know, two things you have to bear in mind. Shock the conscience is something that has to be determined by the circumstances. In the case that it came out of, it was a shocking bit of police behavior. It involved warrantless searches and pumping the stomach of somebody to get evidence in a small time drug case. But when you’re talking about mass murder plots against the United States, not only are, do government officials have more latitude to act, they have more obligation to act. The Supreme Court said during the Civil War that the obligation to protect the American people from foreign and even domestic threats to the national security is the highest obligation that a president has.

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HH: Most important aspect of which, Andrew McCarthy, is, you know, I’ve got a list of maybe five people, only two of whom will talk to me on the air, you and Lawrence Wright, who know al Qaeda, who really get al Qaeda. You prosecuted the Blind Sheik, you prosecuted terrorists. What did they learn from the release of these OLC memos this week?

AM: Well, they learned at least two important things. Number one is directly, they learned what a number of our tactics are. There’s a lot of misinformation out there that says well, this information is public anyway. Nothing is public until the government actually admits it. And there are a lot of things that have come out that were not out in the public domain. We know that this is an organization that actually trains to resist interrogation. And what we have put out there now is going to make them more efficient at doing that. Secondly, and I think in a big picture sense, Hugh, more importantly, they’re taking a measure of us, and they can see that we are not as serious. We’ve really drifted back to that September 10th mentality. And it makes us a lot more vulnerable to attack by them. And that compounds itself when you consider that what the message we have given our intelligence operatives who we are dependent on for our security, is that even if you have a presidential assurance backed by a Justice Department opinion, and encouragement by Congress, that’s…nothing will protect you a year from now, a month from now, or when the political winds change from being investigated or prosecuted for actions taken in defense of the United States.

HH: Andrew McCarthy, last question, any doubt in your mind that not just al Qaeda, but also Hezbollah, Hamas and the operatives of the Iranian National Guard Quds forces have downloaded these OLC memos, and are passing them around, and are studying them?

AM: There’s no question that that’s true.

HH: Is that your experience from when you prosecuted them that they knew what we would do, and that they would invoke every opportunity to study our methods and sources?

AM: They absolutely would, which is why criminal trials are such a trove of information for them. You hand out information, and they have it…literally, we would give things out in court, and they would be with bin Laden in Sudan within a few weeks. And we know that on the basis of information we got from people who cooperated later on.

HH: Andrew McCarthy, great piece today. I repeat, America. If you haven’t read Willful Blindness, and you really want to understand how our enemies act and respond to information, you should read Willful Blindness. Andrew McCarthy, thank you.